fort monroe

COMPLIANCE:

The HQDA Perspective

LTC Jacqueline Little

Chief, Resource Sustainment & Restoration

Branch

U.S. Army Environmental Law Division

TRADOC/NERO Environmental Law

Workshop

24

Agenda

Perchlorate

Pesticides and the Clean Water Act
Penalty Issues
>Penalty Authority
>State-lmposed CAA Penalties

>"Business Penalties" and Fort
Wainwright Litigation

Perchlorate

Background

Perchlorate is an anion that originates as a
contaminant in ground water and surface waters
when the salts of ammonium perchlorate,
potassium perchlorate, magnesium perchlorate,
or sodium perchlorate dissolve in water

Ammonium perchlorate is the primary
component in solid propellant for rockets,
missiles, and fireworks

Manufacture and disposal of such items is one
major source of contamination

Perchlorate is still in its infancy in terms of the
regulatory process

Nevertheless, Army installations are facing
public and regulatory pressure to take steps now
to investigate for ana remediate perchlorate
contamination

Applicability of Selected Statutes
to Perchlorate

RCRA

> Corrective Action - could be SW and HW under
broad statutory definitions. Under narrower
regulatory definitions, not a listed HC or HW.
Would only qualify as regulatory HW if it exhibits
hazardous characteristic.

> Imminent and Substantial Endangerment -
broader statutory definition of SW applies.

Courts give EPA broad discretion in determining
what poses a risk to human health and the
environment.

> Omnibus Authority - usually used to obtain
technological improvements and operational
changes at TSD facilities that otherwise aren't
required by regulation.

Applicability of Selected Statutes
to Perchlorate (cont.)

CERCLA

> Not a listed CERCLA "hazardous
substance"

> Could be an unlisted "hazardous
substance" if it is a RCRA hazardous waste

> Most likely a "pollutant" or "contaminant"

> Response action not required, however,
unless release presents an "imminent and
substantial danger" to the public health or
welfare

Applicability of Selected Statutes
to Perchlorate (cont.)

CWA

> Not a listed “hazardous substance" or
"toxic/priority pollutant"

>Most likely an unconventional pollutant

s CWA defines "pollutant" to include solid waste,
munitions, and chemical waste

s CWA does not define the terms "solid waste",
"munitions", or "chemical waste"

>lf perchlorate is a CWA pollutant, standard
analysis would apply to determine if discharge
permit required

^ Effluent Guidelines (Stormwater & Non-stormwater
discharges)

s Water Quality Standards

> Nonpoint Source Requirements

Applicability of Selected Statutes
to Perchlorate (cont.)

SDWA

> Currently, no MCL; listed on the CCL

> Since 2001, all large public water systems
and a representative sample of small public
water systems must monitor for perchlorate
under the UCMR

> Wellhead Protection Program could be used
to regulate perchlorate in the absence of an
MCL

^ Restrict/control installation activities
^ Protective requirements (e.g., monitoring)
s Treatment

>Sole Source Aquifer Designation

> Emergency Powers

EPA Risk Toxicity Assessment and
Interim Assessment Guidance

EPA draft toxicity assessment for perchlorate (revised
in Jan 02) proposes an oral reference dose (RfD) of .
00003 mg/kg/day and provides a hypothetical
conversion of the draft RfD to a DWEL of 1 ug/L, or
Ippb

On 22 Jan 03, EPA reaffirmed its 1999 interim
assessment guidance establishing a provisional clean-
up/action level for perchlorate of between 4 and 18 ppb
pending finalization of an oral health risk benchmark

22 Jan 03 guidance also "suggests" Regions "carefully
consider" the low end of the 4-18 ppb range

EPA has suspended further comment until
completion of National Academy of Sciences
assessment of studies underlying EPA's 2002 draft
toxicity assessment

DoD Guidance and Activities

DoD Perchlorate Assessment Policy - 13 Nov 02

> Permits sampling if suspect BOTH potential
presence and pathway

> Silent on actions beyond sampling

> Under revision

•♦Interim Policy on Perchlorate "Activities"

0 Consolidation of existing
data/maintenance of databases

0 Sampling where release suspected and
complete human exposure pathway exists

D Funding; ERA if DERP eligible; Class I
compliance

California and Inland Empire

— 1 Army Guidance and Activities

Army Guidance for Addressing Potential
Perchlorate Contamination - 27 Jun 03

> Sample, assess, respond if required by
federal/state law

>ln absence of legal driver, may "respond" if

^ Suspect potential release associated with
DoD activities;

^Pathway with potential to threaten public
health; AND

^HQDA authorization

> Written sampling plans coordinated with ELD

> Sampling results reported to AEC

Massachusetts Military Reservation and Aberdeen
Proving Ground

—I Pesticides and the Clean Water

Issue - whether and undeAdiat circumstances is it
necessary to obtain a NPDES/SPDES permit to apply
pesticides in, on over or near navigable waters?

Multiple lawsuits have challenged the use of
pesticides without a CWA permit

> No Spray I (S.D.N.Y 2000) - CWA not required if use within
category of uses for which EPA has approved pesticide

> Headwaters v. Talent Irrigation (9 th Cir. 2001) - CWA permit
required if permitting criteria (discharge, pollutant, point
source, waters of US) triggered

> Altman v. Town of Amherst (W.D.N.Y. 2001) - no CWA permit
required; pesticides used for their intended purpose are not
"pollutants" under the CWA (vacated by 2^ cir. In 2002 on
procedural grounds)

> League of Wilderness Defenders v. US Forest Service (9^ Cir.
2002) - CWA permit required

> No Spray II (S.D.N.Y. 2002) - CWA permit not required per
legal framework developed in No Spray I

Pesticides and the Clean Water
Act (cont.)

EPA Interim Guidance - 1 1 Jul 03

> Identifies two circumstance when CWA
permit is not required

^Application of pesticides directly to
waters of US to control pests

/ Application of pesticides to control
pests that are present over waters of
the US that results in a portion of the
pesticides being deposited to waters of
the US

>Both require FIFRA compliance

On 13 Aug 03, EPA solicited comments on the
1 1 Jul 03 interim guidance (68 Federal
Register 48385)

Penalty Authority

See Handout for Additional Details

Statute

Imposed by
State

Imposed by
EPA

RCRA Subtitles

YES

YES

C and D
(HW/SW)

1992

1992

RCRA Subtitle I

NO

YES

(USTs)

2000

SDWA

YES

YES

1996

1996

CAA

YES/NO

YES

1997

CWA

NO

NO

State-Imposed CAA Penalties

Litigation and DOJ Position

Case law unsettled as to whether CAA waives sovereign
immunity for state-imposed punitive fines; most recent
cases favor waiver

DOJ Position

> Previous guidance: assert immunity as a defense to
state-imposed fines, except in California, Kentucky,
Michigan, Ohio, and Tennessee

> New guidance effective 15 May 02

^Installations may pay state fines in all states
except Florida, Alabama, and Georgia

^ Settlement agreement must expressly state that
the federal government does not admit liability
and does not waive sovereign immunity under the
CAA

^ All settlements must be coordinated with DoJ
through the Army Environmental Law Division

State-Imposed CAA Penalties

DOJ-Approved Model Language

The Parties have reached this agreement in full
recognition of their respective positions on waiver of
sovereign immunity under the Clean Air Act ("CAA"). Fort
Carson asserts that the CAA has not waived sovereign
immunity for the Division's assessment of punitive fines
or penalties. The Division and the State of Colorado do
not concur in this position and believe they do, in fact,
have the authority to assess such fines or penalties. The
Parties agree that nothing in this Consent Order may be
construed in any way as a waiver of either Party's position
on sovereign immunity. This Consent Order shall not
constitute a waiver of federal sovereign immunity for
state-imposed civil penalties, nor shall this Consent Order
constitute an admission by Fort Carson that such a waiver
of federal sovereign immunity exists. Further, the Parties
agree that this Consent Order is sui generis and,
therefore, shall not be cited by either party as binding
precedent for resolution of future situations of this or any
other type."

State-Imposed CAA Penalties

Administrative Fee Option

CAA Section 118(a): Federal facilities "shall
be subject to" --

"any requirement to pay a fee or charge
imposed by any State or local agency to
defray the costs of its air pollution
regulatory program."

"Business Penalties"

Issue: Do business-based penal ty. criteria
(i.e., economic benefit (EB) and size of
business (SOB) apply when calculating
civil fines against federal facility violators?

Spotlighted in EPA Region 10's Clean Air
Act enforcement action against Ft.
Wainwright, Alaska

Ft. Wainwright Penalty Calculation - $27
mil ($680K gravity; $12.1 mil EB; $12.8
mil SOB)

EPA reduced penalty to $16 mil "because
this is the first case of this magnitude
against a federal facility"

"Business Penalties"

EPA Administrative Law Judge Decision

Business penalty issue argued before EPA's Chief
Administrative Law Judge (ALJ) on 4 Oct 01

Decision issued 30 Apr 02

> EB and SOB apply as a matter of law and may be taken into
account in adjusting civil penalties in federal facility
enforcement cases

> Redefines and broadens EB to include "non-monetary
benefits and benefits which cannot be invested in any profit-
making activities" - e.g., "budgetary flexibility"

> Fiscal law prevents USARAKfrom borrowing funds and
earning income on investments, but BEN Model is not the
only mechanism for calculating EB

> USARAK should have begun baghouse construction in the
earliest year in which it had a MILCON appropriation large
enough to fund the expenditure

> Appears to disfavor use of entire Army budget to calculate
SOB surcharge

Fact specific; could result in no adjustment or an adjustment
less than that proposed by the regulator

"Business Penalties"

EAB Decision

ALJ's decision appealed May 02; argued before EPA's

Environmental Appeals Board (EAB) Nov 02

Decision issued 5 Jun 03

> Upheld ALJ's conclusion that EB and SOB apply as a
matter of law and are "appropriately considered" when
calculating civil penalties against a federal agency
violator

> Upheld ALJ's ruling that USARAK cannot borrow and
invest funds and, as such, BEN Model is an improper
mechanism for calculating economic benefit

> Reversed ALJ ruling that MILCON is interchangeable

> EAB noted that decision should not be interpreted to
suggest that issues Army raised are unimportant and
that EPA should not underestimate the difficulties
associate with proving EB when a federal agency subject
to appropriations laws and the federal budgetary process
is the violator

"Business Penalties"

" Compromise " on Wainwright

FY 01 Defense Authorization Act, Section 314

"The Secretary of Defense, or the Secretary
of the Army, may pay, as part of a settlement
of liability, a fine or penalty of not more than
$2,000,000 for matters addressed in the
Notice of Violation issued on March 5, 1999,
by the Administrator of the Environmental
Protection Agency to Fort Wainwright,
Alaska."

Settled for $2 million on 28 Aug 03;
settlement includes some amount for EB/SOB

"Business Penalties"

Impact of EAB Decision & Way Ahead

Pending EPA CAA enforcement action at
Ft. Jackson where SOB penalties are also
an issue

Expect EPA to propose penalties based
on EB and/or SOB in all future cases

Impact in state cases unclear; to date,
most states have not included EB and
SOB in their penalty assessments

DoD will pursue politically by developing
proposal for EPA designed to result in a
sensible "federal facilities business
penalties" policy

Questions?